Citation Nr: 0731704
Decision Date: 10/05/07 Archive Date: 10/16/07
DOCKET NO. 04-27 616 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Whether new and material evidence has been presented to
reopen a claim of entitlement to basic eligibility for
Department of Veterans Affairs (VA) benefits.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Stephen Eckerman, Counsel
INTRODUCTION
The appellant alleges military service with the United States
Armed Forces in the Far East (USAFFE) in the Philippines from
December 1941 to February 1946.
This claim is before the Board of Veterans' Appeals (Board)
on appeal from an August 2003 hearing officer's decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Manila, Republic of the Philippines, which denied the
above claim. In September 2004, the Board remanded the claim
for additional development.
FINDINGS OF FACT
1. By decision in July 2001, the RO determined that new and
material evidence had not been presented to reopen a claim
for basic entitlement to basic eligibility for VA benefits.
In May 2003, the appellant filed a request to reopen his
claim.
2. Evidence received since the July 2001 decision does not
raise a reasonable possibility of substantiating the
appellant's claim for basic eligibility to VA benefits.
CONCLUSIONS OF LAW
1. The July 2001 decision which determined that new and
material evidence had not been presented to reopen a claim of
entitlement to basic eligibility for VA benefits is final.
38 U.S.C.A. § 7105(c) (West 2002).
2. Evidence received since the RO's July 2001 decision,
which denied the appellant's claim for basic eligibility for
VA benefits, is not new and material, and the claim for this
benefit is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38
C.F.R. § 3.156 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. New and Material
A review of the claims file shows that in April 2000, the RO
denied the appellant's claim of entitlement basic eligibility
for VA benefits. There was no appeal, and the RO's decision
became final. See 38 U.S.C.A. § 7105(c) (West 2002). In
July 2001, the appellant filed to reopen his claim, and that
same month the RO denied the claim. Although a notice of
disagreement was received in December 2002, this was
untimely, as determined by the RO in March 2003. See
38 C.F.R. § 20.302(a); Letter from RO to the appellant, dated
March 18, 2003. Therefore, the RO's July 2001 decision was
final. Id.
In May 2003, the appellant filed to reopen his claim. As a
general rule, once a claim has been disallowed, that claim
shall not thereafter be reopened and allowed based solely
upon the same factual basis. 38 U.S.C.A. § 5108 (West 2002);
38 C.F.R. § 3.156(a) (2007). However, if the claimant can
thereafter present new and material evidence, then the claim
shall be reopened and the former disposition of the claim
shall be reviewed. 38 U.S.C.A. § 5108 (West 2002).
New evidence means existing evidence not previously submitted
to agency decisionmakers. 38 C.F.R. § 3.156(a) (2007); see
also 66 Fed. Reg. 45620 (August 29, 2001). Material evidence
means existing evidence that, by itself or when considered
with previous evidence of record, relates to an unestablished
fact necessary to substantiate the claim. Id. New and
material evidence can be neither cumulative nor redundant of
the evidence of record at the time of the last prior final
denial of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim. Id.
Evidence is presumed credible for the purposes of reopening
unless it is inherently false or untrue. Duran v. Brown, 7
Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App.
510, 513 (1992). The evidence relied upon in reopening the
claim must be both new and material. Smith v. West, 12 Vet.
App. 312 (1999).
The appellant claims entitlement to VA benefits based on his
alleged service as a member of the U.S. Armed Forces in the
Far East (USAFFE).
The most recent and final denial of this claim was the RO's
decision dated in July 2001. Therefore, the Board must
determine if new and material evidence has been submitted
since the RO's July 2001 decision. See 38 U.S.C.A. §5108.
When determining whether the evidence is new and material,
the specified basis for the last final disallowance must be
considered. See Hodge v. West, 155 F.3d 1356 (Fed. Cir.
1998).
Eligibility for VA benefits is based on statutory and
regulatory provisions which define an individual's legal
status as a veteran of active military service. See
38 U.S.C.A. §§ 101(2), 101(24) (West 2002); 38 C.F.R. §§ 3.1,
3.6 (2007). As a predicate requirement for a grant of VA
benefits, a claimant must establish that he or she is a
claimant as defined in VA statute and regulation.
A veteran is defined as "a person who served in the active
military, naval, or air service, and who was discharged or
released therefrom under conditions other than dishonorable."
38 U.S.C.A § 101(2) (West 2002); 38 C.F.R. § 3.1(d) (2007).
See Selley v. Brown, 6 Vet. App. 196, 198 (1994).
Service in the Philippine Scouts and in the organized
military forces of the Government of the Commonwealth of the
Philippines, including recognized guerrilla service, may
constitute recognized service in the armed forces of the
United States for VA purposes. 38 C.F.R. §§ 3.8, 3.9 (2007).
However, such service must be certified as qualifying by
appropriate military authority. 38 C.F.R. § 3.203 (2007).
If a claimant does not submit evidence of military service,
or the information is insufficient, VA must request the
information from the service department. Sarmiento v. Brown,
7 Vet. App. 80, 82 (1994); see also Laruan v. West, 11 Vet.
App. 80, 82 (1998) (observing that if there is reason to
believe that information provided to service department was
erroneous (e.g., misspelled name), VA may be required to
resubmit request for information to service department.)
Only service department records can establish if and when a
person was serving on qualifying active service. Venturella
v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7
Vet. App. 232, 237 (1994). The service department's findings
are binding and conclusive upon VA. VA does not have the
authority to alter the findings of the service department.
Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see Soria v.
Brown, 118 F.3d 747, 749 (Fed. Cir. 1997).
It has been held that a person seeking VA benefits must first
establish by a preponderance of the evidence that the service
member upon whose service such benefits are predicated has
attained the status of veteran. D'Amico v. West, 12 Vet.
App. 264 (1999) rev'd on other grounds, 209 F.3d 1322 (2000);
Holmes v. Brown, 10 Vet. App. 38, 40 (1997). For the purpose
of establishing entitlement to VA benefits, VA may accept
evidence of service submitted by a claimant, such as a
Department of Defense (DD) Form 214, Certificate of Release
or Discharge from Active Duty, or original Certificate of
Discharge, without verification from the appropriate U.S.
service department under the following conditions: (1) the
evidence is a document issued by the United States service
department; (2) the document contains needed information as
to length, time, and character of service; and, (3) in the
opinion of VA the document is genuine and the information
contained in it is accurate. 38 C.F.R. § 3.203(a) (2007).
The evidence of record at the time of the RO's July 2001
decision included a lay statement from a physician asserting
that the appellant had USAFFE service. A certificate from
General Headquarters Armed Forces of the Philippines, Office
of the Adjutant General, dated in April 1999, indicated that
the appellant had USAFFE service from December 15, 1941 to
February 23, 1946. A "joint affidavit" from H.S.N. and
A.O.M., received in January 2000, asserted that the appellant
was "a World War II veteran who came back to Tambo from the
Death March in Bataan in 1942." A Philippine Army discharge
indicated that the appellant had service from December 12,
1941 to February 19, 1946. A statement from the National
Personnel Records Center (NPRC), received in April 2000,
stated that the appellant had no service as a member of the
Philippine Commonwealth Army, including the recognized
Guerillas, in the service of the United States Forces.
At the time of the RO's July 2001 denial of the claim, there
was no service department evidence to show that the appellant
had an established period of recognized service as a
Philippine Scout, a member of the Philippine Commonwealth
Army serving with the Armed Forces of the United States, or
as a guerrilla.
Evidence received since the RO's July 2001 decision consists
of statements from the appellant, photographs of military
medals, several lay statements, and several statements from a
physician. Other evidence is described below:
A Philippine Army certificate, dated in December 1937,
indicates that the appellant had 51/2 months of service as a
trainee as a reserve private in the Fifth District Militia
Division.
Certificates from General Headquarters Armed Forces of the
Philippines, Office of the Adjutant General, dated in October
2001, and September 2003, indicate inter alia that the
appellant had USAFFE service from December 15, 1941 to
February 23, 1946.
An "Affidavit for Philippine Army Personnel," (APAP) dated in
February 1946, indicates that the appellant had service as a
USAFFE "regular" and "guerilla." This document is
accompanied by an "induction record" and an "enlistment
record."
In January 2006, the RO attempted to verify the appellant's
claimed service with the NPRC. A letter from the NPRC, dated
in February 2006, shows the NPRC states that the appellant's
claimed USAFFE service could not be verified, and that there
were no archives or acceptable secondary evidence to support
his claim of service time in the Philippine Commonwealth
Army, including the recognized guerillas, in the service of
the United States Armed Forces.
In June 2006, the RO again attempted to verify the
appellant's claimed service with the NPRC, noting that its
January 2006 request had used an incorrect release from
active duty (RAD) date. A letter from the NPRC, dated in
June 2006, shows that the NPRC states that the appellant's
name was not shown in the official records and archives on
file at the Center which list the members of the Philippine
Commonwealth Army, including recognized guerillas, in the
service of the United States Armed Forces.
This evidence, which was not of record at the time of the
RO's July 2001 decision, is not cumulative, and is "new"
within the meaning of 38 C.F.R. § 3.156. However, the Board
finds that this evidence is not material. None of the
evidence includes verification from an appropriate service
department demonstrating that the appellant served as a
member of the Philippine Commonwealth Army, including as a
recognized guerrilla in service of the United States of
America. In short, under 38 C.F.R. §§ 3.41 and 3.203,
Philippine veterans are not eligible for veterans' benefits
unless a United States service department documents or
certifies their service. See Duro; see also Dacoron v.
Brown, 4 Vet. App. 115, 120 (1993). The RO attempted to
verify the appellant's claimed service without success.
There has been no new evidence presented since the service
department search which is different from the evidence
already considered, that would warrant a request for
recertification. See Sarmiento v. Brown, 7 Vet. App. 80
(1994). The Board therefore finds that the submitted
evidence does not raise a reasonable possibility of
substantiating the appellant's claim for basic eligibility to
VA benefits. See e.g., Hodge v. West, 155 F.3d 1356, 1363
(Fed. Cir. 1998). The claim is therefore not reopened.
II. VCAA
On November 9, 2000, the President signed into the law the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§
5100, 5102-5103A, 5106, 5107, 5126 (West 2002)). The VCAA
imposes obligations on VA on its duty to notify and assist
claimants.
Under the VCAA, when VA receives a complete or substantially
complete application for benefits, it is required to notify
the claimant and his representative, if any, of any
information and medical or lay evidence that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38
C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet.
App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112,
120-21 (2004), the United States Court of Appeals for
Veterans Claims (Court) held that VA must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide.
The Court also held that VA must request that the claimant
provide any evidence in his possession that pertains to the
claim. Id. This "fourth element" comes from the language of
38 C.F.R. § 3.159(b)(1).
The Board finds that the notice requirements have been
satisfied. In September 2004, the RO sent the appellant a
notice letter (hereinafter "VCAA notification letter") that
informed him of the type of information and evidence
necessary to support his claim. The notification letter
informed the appellant of his and VA's respective
responsibilities for obtaining information and evidence under
the VCAA. See 38 U.S.C.A. § 5107(a) (West 2002); 38 C.F.R. §
3.159(c)(1-3) (2007). The RO's notification letter contained
a specific request for the appellant to provide additional
evidence in support of his claim. He was asked to identify
all relevant evidence that he desired VA to attempt to
obtain.
To the extent that there was any deficiency in the timing of
the notice to the appellant, the Board notes that the Court
of Appeals for Veterans Claims (Court) has held recently that
a supplemental statement of the case (SSOC) that complies
with applicable due process and notification requirements
constitutes a readjudication decision. Mayfield v.
Nicholson, 20 Vet. App. 537 (2006) (Mayfield III) aff'd
Mayfield v. Nicholson, 07-7130 (Fed. Cir. September 17, 2007)
(Mayfield IV); see also Prickett v. Nicholson, 20 Vet. App.
370 (2006) (holding a Statement of the Case that complies
with all applicable due process and notification requirements
constitutes a readjudicated decision). Here, a July 2007
SSOC postdated the September 2004 notice letter. The
provision of adequate notice followed by a readjudication
"cures" any timing problem associated with inadequate notice
or the lack of notice prior to an initial adjudication.
Mayfield III, at 542, citing Mayfield II, 444 F.3d at 1333-
34.
In a recent decision, Kent v. Nicholson, 20 Vet. App. 1
(2006), the Court stated that VA's obligation to provide a
claimant with notice of what constitutes new and material
evidence to reopen a service-connection claim may be affected
by the evidence that was of record at the time that the prior
claim was finally denied. A review of the July 2001 rating
decision, as well as a March 2003 duty to assist letter and
the July 2007 Supplemental Statement of the Case, shows that
the appellant was notified that his claim for basic
eligibility for VA benefits had previously been denied. They
further informed the appellant of the criteria for legal
entitlement to VA benefits, specifically, that he had to
submit new and material evidence to reopen his claim,
including new and material evidence of verification from an
appropriate service department demonstrating that the
appellant has the requisite service. In summary, the
appellant has been provided with adequate notice of what
constitutes new and material evidence to reopen his claim.
Kent.
Further, the RO's May 2004 Statement of the Case clearly set
forth the requisite evidence, as defined in 38 C.F.R. §
3.203, and notified the appellant as to why the evidence he
had submitted was not adequate for purposes of showing
qualifying service. See also July 2003 hearing transcript;
July 2007 Supplemental Statement of the Case; August 2004 RO
memo.
Importantly, statements on appeal indicate that the appellant
has actual knowledge of the information and evidence that is
necessary to substantiate his claim. See Written statements
from the appellant, dated October 25, 2003, November 21,
2003, February 14, 2004, July 12, 2004, and August 7, 2007;
Appellant's representative's "written brief presentation,"
dated in August 2004. Accordingly, the Board finds that the
notice requirements in this case have been met.
Additionally, even though the U.S. Court of Appeals for
Veterans Claims has held that VCAA notice requirements apply
in a claim to reopen (such as this), it also held that an
appellant who is currently ineligible for VA benefits as a
matter of law based on the NPRC refusal to certify the
appellant's service is not prejudiced by lack of notice. See
Palor v. Nicholson, No. 04-0555 (U.S. Vet. App. Jun 29,
2007); see also Sanders v. Nicholson, 487 F.3d 881 (2007)
(holding that the purpose of section 5103(a) notice is not
frustrated, and thus, the claimant is not prejudiced, when
the benefit sought cannot be awarded as a matter of law);
Valiao v. Principi, 17 Vet. App. 229, 232 (2003) (determining
that VCAA notice error was nonprejudicial where appellant was
not entitled to benefit as matter of law).
VA also has a duty to assist the appellant in obtaining
evidence necessary to substantiate the claim. In this case,
the RO has attempted to verify the appellant's claimed
service, and has obtained private medical records, and other
evidence. The Board concludes, therefore, that a decision on
the merits at this time does not violate the VCAA, nor
prejudice the appellant under Bernard v. Brown, 4 Vet. App.
384 (1993).
Based on the foregoing, the Board finds that the appellant
has not been prejudiced by a failure of VA in its duty to
assist, and that any violation of the duty to assist could be
no more than harmless error. See Conway v. Principi, 353
F.3d 1369 (Fed. Cir. 2004).
ORDER
New and material evidence not having been submitted, basic
eligibility for VA benefits is denied.
____________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Important Notice: Attached to this decision is a VA Form
that provides information concerning your rights to appeal
our decision. Due to recent changes in the law, some of the
information contained in the attached notice of appellate
rights form is no longer accurate concerning the ability to
pay attorneys and agents to represent you. Some additional
information follows that summarizes the current law. To the
extent that the information contained in the attached VA Form
conflicts with the summary below, please disregard the
information on the VA Form and instead rely upon the
following information:
Do I have to pay an attorney or agent to represent me?
An attorney or agent may charge a fee to represent you
after a notice of disagreement has been filed with
respect to your case, provided that the notice of
disagreement was filed on or after June 20, 2007. See
Veterans Benefits, Health Care, and Information
Technology Act of 2006, Pub. L. No. 109-461, 120 Stat.
3403 (2006). If the notice of disagreement was filed
before June 20, 2007, an attorney or accredited agent
may charge fees for services, but only after the Board
first issues a final decision in the case, and only if
the agent or attorney is hired within one year of the
Board's decision.
The notice of disagreement limitation does not apply to
fees charged, allowed, or paid for services provided
with respect to proceedings before a court. VA cannot
pay the fees of your attorney or agent, with the
exception of payment of fees out of past-due benefits
awarded to you on the basis of your claim when provided
for in a fee agreement.
VA is in the process of amending its regulations
governing representation of claimants for veterans'
benefits in order to implement the provisions of the new
law. More information concerning the regulation changes
and related matters can be obtained at
http://www1.va.gov/OGC (click on "Accreditation and
Recognition of Service Organizations").
Fee for VA home and small business loan cases: An
attorney or agent may charge you a reasonable fee for
services involving a VA home loan or small business
loan. For more information, read section 5904, title
38, United States Code.
Filing of Fee Agreements: In all cases, a copy of any
fee agreement between you and an attorney or accredited
agent must be sent to the Secretary at the following
address:
Office of the Chief Counsel for Policy (01C3)
Board of Veterans' Appeals
810 Vermont Avenue, NW,
Washington, DC 20420
Facsimile: (202) 565-5643
(When final regulations are published to implement the
requirements of the new law, fee agreements must be
filed with the VA Office of the General Counsel and not
the Board.)
Department of Veterans Affairs